Director of Public Prosecutions v Scott (a pseudonym)
[2016] VCC 323
•17 March 2016
| Revised Not Restricted Suitable for Publication with pseudonym |
AT BALLARAT
CRIMINAL JURISDICTION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| RICHARD ANDREW SCOTT (A pseudonym) |
---
| JUDGE: | HER HONOUR JUDGE WILMOTH |
| WHERE HELD: | Ballarat |
| DATE OF HEARING: | 16 March 2016 |
| DATE OF SENTENCE: | 17 March 2016 |
| CASE MAY BE CITED AS: | DPP v Scott (a pseudonym) |
| MEDIUM NEUTRAL CITATION: | [2016] VCC 323 |
REASONS FOR SENTENCE
---Subject: Criminal law- sentence
Catchwords: Pleas of guilty to one charge of using a carriage service to access child pornography, one charge of knowingly possessing child pornography and one charge of possessing a drug of dependence – most images in category 1 – duration of offending 6 months – remorse – unhappy childhood – victim of sexual and physical abuse – early plea of guilty – delay – general deterrence of primary importance – mitigating factors do not outweigh need for general deterrence.
Cases Cited:DPP v Gibson [2015] VCC 1279; CDPP v Zarb [2014] VSCA 347; DPP v Smith [2010] VSCA 215
Sentence: Charge 1, 9 month RRO to serve 3 months; Charge 2, 2 year CCO; Charge 3, Fine $500 ---
NOTE A pseudonym has been used to protect the identity of the Offenders family, subjected to sexual abuse by others
APPEARANCES: | Counsel | Solicitors |
| For the Commonwealth Director of Public Prosecutions | Ms S. Lye | CDPP |
| For the Accused | Mr J. Irwin | Jon Irwin (solicitors) |
HER HONOUR:
1Richard Andrew Scott[1], you have pleaded guilty to one charge of using a carriage service to access child pornography, one charge of knowingly possessing child pornography, and one charge of possessing a drug of dependence, namely methamphetamine.
[1]
2The maximum penalties for these offences are 15 years' imprisonment for Charge 1, ten years' for Charge 2, and one year or a fine for Charge 3.
3I will be imposing a term of imprisonment for the Commonwealth offence and a community corrections order for the state offence. I will explain the sentence in detail later in these remarks. Suffice to say at the moment that you will be required to serve three months.
4You committed these offences in 2013, almost three years ago. In May of that year an email account you were using had come to the attention of an agency called The National Centre For Missing & Exploited Children as a number of attached files contained child pornography images.
5A search warrant executed at your home on 23 October 2013 and a laptop computer and a computer tower were seized both containing deleted child pornography material. A small bag of white powder substance was also found, which you said had been given to you and you believed it was speed.
6Your conversation with police at the time of the search was recorded and later that day you had participated in a record of interview at the police station. During the initial conversation at your home you stated that there was no child pornography on your laptop that you were aware of, but you then admitted to an isolated incident when over a number of weeks you had sent and received child pornography, having opened an email account specifically to try to track down whoever was posting disgusting comments about children.
7You said you had come across these images when searching for adult pornography and decided to try and make some sort of case and take it to someone, but you lost interest, deciding it was not your job. You sent the images back to those who had sent them to you, keeping a record of them by that means.
8You said you knew it was wrong, and that you had not used the email address for six or seven months. In fact, the last access date was 23 September 2013, a month before the execution of the search warrant.
9In your interview with the police you did not want to comment further on the reason you had initially given for viewing the images, that you had been trying to build a case against the perpetrators, and you said you had been drawn to look at the images. You fell into the trap of it and it had been a habit for which you needed counselling.
10You admitted that one reason for requesting the images to be sent to you was because you wanted to view them yourself and then you had been disgusted by knowing that about yourself. You said you were getting over it and you didn't want to look at it anymore.
11Analysis of the two devices revealed deleted files containing a total of 659 images and six videos. They are the subject of Charge 1, using a carriage service to access child pornography, a charge under Commonwealth legislation.
12There were two undeleted files containing one image each on the desktop computer which are the subject of Charge 2, possessing child pornography, a charge under state legislation.
13The majority, 468 images and two videos, were classified under Category 1 on the scale used for child pornography, and a small sample of the images that I viewed showed young children in sexually suggestive poses wearing underwear, and nudity with explicit emphasis on the genital area.
14Those latter images were of an undoubted depraved nature. Most of the remaining images fell into the next three categories of increasing gravity in terms of what was depicted. I did not view a sample of them.
15Those categories cover such activities as masturbation and sexual acts between children, Category 2; non-penetrative sexual activity between adults and children, Category 3; and penetrative sexual activity between children and between children and adults, including various types of penetration, Category 4.
16Five of the images fell into Categories 4 and 5, the two most serious categories. Category 5 relates to children engaged in sexual activity involving images of sadism, bestiality and humiliation.
17Any aspect of dealing with child pornography such as those covered by these charges is very serious criminal behaviour. The use of many children, as was the case here, to provide the images indicates the extents of exploitation of them and it may be assumed that the experience would have caused them harm, which in particular cases could be ongoing and long lasting.
18Ready access to the images helps to ensure that there is a market for such material, a market which would not exist if access was not sought. In this way the person gaining access helps to perpetuate the exploitation of the children, as you have by your actions.
19I do not accept that the one reason for your viewing of the images was to try and provide information for someone to deal with the creators of the material. Even if that were true you have admitted that you fell into the trap of looking at the images and that you wanted to and knew you should avoid doing so. It seems that you tried to minimise your involvement by this means and by exaggerating the period of time since you had ceased looking at the material.
20However, I accept that you are genuinely remorseful, having expressed that at the time of the interview, when you told the police you were disgusted with yourself for looking at the material and that you were sorry for sending it. You told your psychologist, Dr Lorensini, that you were aware of the abuse and exploitation of children in the making of pornography and how the children involved can be emotionally damaged for the rest of their lives.
21You had begun seeing Dr Lorensini within two or three weeks of being charged and have continued to see her for a total of 28 sessions. Dr Lorensini reported that she accepted your denial of ever having achieved any sexual gratification from the material. You told her that you had been doing research to find out what made people sexually abuse children.
22It might be inferred from an email exchange between yourself and a person who sent material to you that you did find it sexually gratifying because you told that person, "No, sorry. Please try again. First one did. Last one didn't work. The one with the boy, didn't like. I love girls being made love to (fuck Vince cool as)". That comes from p.37 of the depositions.
23In addition to this you told the police as I have already described that you fell into the trap of looking at the material and that you needed assistance to get out of it. It is most likely, therefore, that you did find the material sexually gratifying and your denial would be consistent with the shame and disgust you say you have felt. It is unclear what this means as far as sexual deviancy is concerned and of course there is no other evidence of it.
24I turn now to your background which is one of an unhappy childhood. Your father was violent and a heavy drinker and your mother became pregnant with you as the result of your father raping her at the time of their separation. You have one older sister and your mother told you that she did not trust her husband to be around her daughter.
25As a seven-year-old you were molested by some older boys at school and when your mother complained to the police and to the school nothing was done. But you were set upon by the boys and had your hair pulled out.
26You suffered from asthma and whether it was because of that or whether you were being punished for something, on one occasion your mother kept you confined to your bedroom for several weeks and you found this very difficult to cope with.
27Your mother remarried and your relationship with your stepfather began well but later he would beat you and whip you with a piece of garden hose. He also hit your mother, and as an adult you confronted him for this.
28You left home at 16 and got a job and with nowhere to live you were taken in by a work colleague then lived with your sister's parents-in-law. There you were sexually abused by the father of your sister's father-in-law and you went to live elsewhere as a result.
29You have two children, including a daughter who is now 17. When she was aged 13 her drink was spiked by a 17-year-old boy who then raped her. She became pregnant and a boy was born. She kept the baby and now has an 18-month-old baby as well.
30Following this you became depressed and you drank heavily at night. You bought a computer and spent time looking for houses to buy and it was at this time that you accessed the child pornography.
31You are close to your daughter and her children and to the four adult children of your ex-wife Julie, two of whom were adopted by you when they were younger. You are also close to the four school-aged children of Julie's sister-in-law Amanda.
32The references I have been shown from Julie, Amanda, and from a neighbour, all attest to your good qualities as a friend and to your trustworthiness. It seems that Julie and Amanda certainly knew something about these charges when they wrote the references, although perhaps your neighbour did not.
33Most of your working life has been spent as a truck driver but at the time of the offending you had been driving taxis part time. More recently you have been seeking work and you are planning to set up your own business as an auto-trader.
34You live with your mother and you are caring for her as she has leukaemia. As a mature student you enrolled in a university course several years ago but did not complete it. Clearly, you are an intelligent man who might still have an opportunity to do well in life, with your prospects for rehabilitation being positive.
35Your commitment to counselling over a long period is evidence of insight and motivation to leave behind this phase of your life. Other mitigating factors in your favour are your early plea of guilty and the delay which has occurred. The plea means that the expense and inconvenience of a trial has been avoided, which I take into account as having facilitated the system of justice regardless of the fact that the prosecution case is a strong one. You are nonetheless entitled to a discount on your sentence.
36As to delay, there was a relatively long period of nine months between the provision of the brief of evidence to the Commonwealth Director of Prosecutions and the filing of the charges. Otherwise, the delay has not been inordinate and none of it was through any fault of yours. The case has been hanging over your head for about two and a half years and I take that into account.
37The sentencing submission made by your counsel was for leniency in the form of a suspended sentence as can be provided for by a recognisance release order for the Commonwealth charge or a community correction order for all three charges or just for Charges 2 and 3.
38On balance the likelihood that you will pose any future risk to the community is relatively small particularly given your commitment to ongoing treatment. However, I note in passing that the Corrections officer that assessed you as to your suitability for a community corrections order considered your risk of reoffending as medium.
39I was referred to the sentence that I imposed in the case of DPP v Gibson [2015] where an offender avoided imprisonment and to the decisions in Zarb and Smith where long community corrections orders were imposed. Although, in Zarb, which was the subject of a Director's appeal a three month prison term for one of the charges was imposed in addition to the CCO.
40The facts in Gibson were somewhat unusual and its relevance to this case is limited. I have given careful consideration to the decisions in Zarb and Smith and while accepting that of course the circumstances of each case are different some of the circumstances which in those cases led to relative leniency also apply in this case.
41In Smith the court set out the principles which apply in sentencing offenders in these cases. General deterrence is regarded as the paramount consideration but the nature and gravity of the offending is to be determined by reference to the nature and content of the material, the number of images concerned, whether the material is for sale or further distribution, and whether the offender will profit from the offence.
42The latter two points do not apply in this case. The material is consistent in its abhorrence to that very often seen in these cases, with most images in the lower of the six categories as I have already said.
43The number of images is not high and the period of six months during which the offending occurred is quite protracted. In Smith it was held that the circumstances did not call for immediate custody and that the appellant’s need for treatment was a priority. The appellant in that case was a very isolated immature person lacking insight into the effect on the victims.
44By contrast, you are a man of mature years, the father of children yourself and you have had contact with children of various ages until the present time. Therefore, you should have been aware of the effect upon children of the creation of pornographic material.
45You have had experience of life in the usual way unimpeded by any social barriers despite your admittedly dysfunctional early years. You knew full well that what you were doing was wrong and continued to act accordingly for some six months.
46In the decision of Zarb the respondent’s need for sex offender treatment was not regarded by the court as justification for departure from the need for a custodial sentence in such cases hence the imposition of a short term of imprisonment.
47There are some parallels between that case and this case in that the importance of general deterrence outweighs the mitigating factors, notwithstanding a shorter period of the duration of the offending. Putting it another way the mitigating factors in your case are not of such a substantial nature as to outweigh the primary need for general deterrence.
48Taking into account the necessary sentencing principles and the particular circumstances of this case I sentence you as follows, and I will ask you to stand now, please, Mr Scott.
49For Charge 1, nine months' imprisonment but you are to be released on a recognisance release order after serving three months'. You will be required to be of good behaviour for two years' and I will fix a recognisance of $1,000. That is not a sum you need to pay now but it is a form of security which might be paid in the event on non-compliance. The sentence commences today.
50I also need to tell you that the terms of this order can be varied or it can be discharged by you or those in authority such as the Commonwealth Director of Public Prosecutions.
51As for Charge 2, you have been assessed as suitable for a community correction order but I note, and this just might be an omission, that you have not signed the form consenting to the order being made so that will be given to you shortly together with the order itself, and subject to your consent being given I shall impose the order.
52It will begin when you are released from prison and will last for two years'. You will be under supervision and you must perform 80 hours of unpaid community work over six months. You must submit for assessment and any necessary treatment for alcohol abuse and you must take part in the sex offender program. You must also have a mental health assessment with a view to some form of continuing treatment such as counselling as you have already undertaken.
53Once you are released from prison you must attend to the Corrections' office within two working days at 206 Mair Street, Ballarat.
54For Charge 3, you are convicted and fined $500 with a stay of 6 months.
55If you had pleaded not guilty I would have sentenced you to a recognisance release order of 12 months' to serve six months' and to a community corrections order of two and a half years with a fine of $800.
56It is mandatory that you be placed on the sex offender's register and that after your release from prison you will have to provide your details to the police each year for 15 years. You will be given a form to sign in that regard in a moment. Mr Irwin, I have got the assessment form here that the Corrections officer provided.
57MR IRWIN: Yes, Your Honour.
58HER HONOUR: That can be given to your client to sign subject to his consent of course.
59MR IRWIN: Indeed.
60 MS LYE: Could I request a copy of the sentence from your associate?
61HER HONOUR: Certainly. She'll provide that to you straight away.
62MS LYE: Yes, thank you very much.
63HER HONOUR: Now, in the circumstances, Mr Irwin, I'll leave the Bench and I'll allow Mr Scott to say goodbye to his family.
64MR IRWIN: Indeed. Thank you, Your Honour.
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